Four simple truths about Florida's Zimmerman-Martin case that aren't being discussed by the media

3:00pm Friday, May 25, 2012

by Don Kates

The shooting of Trayvon Martin by George Zimmerman has been the subject of enormous confusion, not only because the facts are not entirely clear, but more because of public misunderstanding of the relevant law. I hope the following will help clarify things.

1. IT'S NOT THE JOB OF THE POLICE TO INTERRUPT CRIMES AND DEFEND CITIZENS.

The police exist to do two things ONLY: patrol thereby deterring crime; and investigating already-committed crimes to apprehend the perpetrators. The police cannot be expected to interrupt crime and defend citizens. This is because police are rarely around when criminals strike. The statistics on apprehension of criminals show that in less than 5% of cases does that happen while the crime is in progress. In many more cases the police arrive AFTER the crime has occurred and literally chase down the criminal. In many more cases yet the police arrive AFTER the crime has occurred and only make an arrest days or weeks later during which time investigation has identified some particular person as the criminal.

Because the police have no general duty to defend victims, by either statute or common law in EVERY STATE the police are immune from suit by victims who claim the police should have defended them. In no state are police liable even if they negligently fail to defend victims – because they have the duty ONLY to patrol and to apprehend after the crime, not to defend victims.

If you want to be defended from crimes you prepare to defend yourselves! If you want to defend your neighborhood, you organize a neighborhood watch like the one of which Zimmerman was a captain. (It was pursuant to his duty as captain that Zimmerman surveilled Martin, whom he saw as a suspicious character.)

2. IT WAS TO PROTECT ZIMMERMAN, NOT MARTIN, THAT POLICE DISCLAIMED ANY REQUEST TO FOLLOW MARTIN.

Why did the police dispatcher to whom Zimmerman reported Martin tell Zimmerman not to follow him further? [See caveat below] Because if she had not the Department might have been sued by Zimmerman or his surviving relatives. The dispatcher could reasonably have anticipated what Zimmerman claims did happen: that Martin attacked him, knocking him down, beating him about the face – thereby breaking his nose – and repeatedly smashing his head into the cement. Had Zimmerman not had a gun he might have been even more seriously injured or killed.

And guess who could have been sued for that? The police! They would not have been liable for failing to defend Zimmerman. But they would be liable for any injury Zimmerman suffered from following Martin pursuant to police approval. Telling Zimmerman not to follow Martin assured that police would not be held liable to Zimmerman for in any way authorizing or condoning his pursuit of Martin.

[CAVEAT: based on the transcript, the police did NOT tell Zimmerman not to follow Martin; they just disclaimed any request that he do so.]

3. ZIMMERMAN HAD A PERFECT RIGHT TO OBSERVE AND FOLLOW MARTIN ON PUBLIC STREETS.

The police have absolutely no special authority either themselves to observe or follow people on the public streets or to authorize or forbid others doing so. The law is that everyone has the right to observe or follow anyone else on the public streets. That is the only reason the police have the right to do so. Just like – and no more than – George Zimmerman had the right to observe or follow Martin on the public streets.

4. IRRELEVANCE OF "STAND YOUR GROUND" LAWS

Unfortunately news media coverage of this shooting has grossly mis-portrayed both the facts and law, thereby dragging in legal issues that have no relevance at all. News reports have consistently misled the public into thinking the case involves some unique recent Florida "stand your ground" law which protects victims who have stood their ground to defend themselves against attackers.

In fact, both the facts on which both sides agree and the allegations on which they disagree preclude application of any aspect of the "stand your ground" law: If, as the shooter claims, Martin rushed up behind him, knocked him down and was sitting on his chest beating him, retreat was impossible. Conversely, if as Martin's advocates claim, Martin posed no threat to Zimmerman and was wantonly shot down, Zimmerman committed murder. Under no view of these conflicting allegations is it relevant that Florida law allows a victim to stand his ground when attacked.

Moreover the "stand your ground" rule has been the majority rule among American states for over 200 years. It is true that a new statute endorsing the "stand your ground" rule has recently been adopted by twenty-five of our fifty states. But this statute makes no difference since almost all of those states – and the rest of the states -- had long endorsed the "stand your ground" principle. To reiterate, immunity from prosecution for standing your ground and defending yourself when attached has been the majority American law for centuries. In addition to the 25 states that have recently enacted the NRA statute, another seven states have earlier statutes applying "stand your ground" to situations outside the home, such as in vehicles or places of employment. Other states long ago adopted "stand your ground" by judge-made law.

Don Kates is a retired American professor of constitutional and criminal law, and a criminologist and research fellow with The Independent Institute in Oakland, California. His books include Armed: New Perspectives On Gun Control, Restricting Handguns: The Liberal Skeptics Speak Out, Firearms and Violence: Issues of Public Policy, and The Great American Gun Debate: Essays on Firearms and Violence. As a civil liberties lawyer he has represented gun owners attacking the constitutionality of certain firearms laws.

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